The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 7, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 7, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond May 1, 1998 in relation to his compensable accident of February 16, 1998.

Decision

That the claimant is entitled to payment of wage loss benefits beyond May 1, 1998 to July 15, 1998 (until the work site assessment) in relation to his compensable accident of February 16, 1998.

Background

On February 16, 1998, the claimant slipped and fell on ice in the parking lot at his place of employment. Initial medical documentation diagnosed the injury as a back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid. File documentation also noted that the claimant had a prior 1995 compensable claim which resulted in the claimant's working in a modified duty position (shipper/loading person) up to the February 1998, incident.

On April 20, 1998, the case was reviewed by a WCB medical advisor who agreed with the attending physician that the claimant could perform light duties with the following restrictions: no prolonged sitting or standing for more than 30 minutes, no lifting over 10 lbs., no repeated lifting and no repeated bending.

In a letter to the claimant, dated April 28, 1998, the employer indicated that a "quality assurance check position on the kill floor" was available and that it was in keeping with the above restrictions. The claimant was advised that the job involved checking pieces of pork for bone fragments and that it could be performed while sitting or standing. The claimant would only be handling a few ounces of meat at a time. The claimant was invited to observe the job and to report to the plant for work on May 4, 1998. In a subsequent telephone conversation with the plant nurse on May 1, 1998, a WCB adjudicator documented the fact that the claimant had come in to work and advised that he was not going to return to light duties, even at four hours a day, until he was able to speak with his doctor on May 11, 1998.

On May 1, 1998, Claims Services notified the claimant that his wage loss benefits would be suspended should he not return to work as arranged. On June 3, 1998, a union representative appealed the decision noting that the claimant had reported to the plant prior to May 4, 1998, and that the job he was asked to perform was not the job as had been described by the employer on April 28, 1998. The union representative wrote, "The claimant was asked to work on the production line next to the gutting table, separating the intestines. He would have to keep up with the production and it would require him to bend over in a standing position. The claimant was however informed by the supervisor, that a chair could be provided. Even with a chair it would require the Claimant to bend forward to be able to reach the intestines on the production line." The union representative concluded by saying the claimant did not think that he was able to perform the job due to his back condition and that it was not the job described to him by the WCB and by the employer. The union representative later submitted two medical reports, dated May 11, 1998, and July 6, 1998. He felt these reports confirmed that the claimant was unable to return to work due to his ongoing work related back problems.

A work place assessment was carried out on July 15, 1998, to evaluate the proposed light duty position (quality check operator) being offered to the claimant. At the completion of the assessment, the vocational rehabilitation consultant concluded that the position appeared to be within the claimant's listed restrictions. According to the claimant, however, this was not the same position that was shown to him on his return to work in May 1998. Further file documentation included statements received from the claimant, dated August 11, 1998, and from the employer, dated September 2, 1998.

On September 25, 1998, the WCB's Review Office determined, on a balance of probabilities, that the claimant refused an offer of suitable light duty employment on May 4, 1998 and consequently failed to reasonably mitigate the effects of his work-related accident. It also determined that the claimant was not entitled to payment of further wage loss benefits after this date in accordance with the provisions of section 22, of the Workers Compensation Act (the Act).

Review Office stated, "What job was actually provided on May 4th, and rejected by the claimant, is an issue that relies almost totally on the respective credibility of the claimant and employer....who have provided contrary accounts of the events which took place on that date." Based on file documentation, Review Office found that the information provided by the employer was more credible because it had been somewhat supported by written documentation, and because other information provided by the claimant had not always stood up to inspection. It was further noted that the claimant did not make this job switch known when he was speaking to his adjudicator on May 6th. It seemed reasonable that he would have done so, if this had been the main reason for his refusal of light duty employment.

On April 27, 1999, the union representative appealed Review Office's decision stating that the job offered to the claimant by his employer was not within his restrictions. An oral hearing was then arranged for September 7, 1999.

Reasons

The employer informed the claimant by registered letter, dated April 28th, 1998, that it had a work position available which would accommodate the claimant's restrictions. "This job is available immediately to you. I would like you to notify the nurse of your availability to come in to observe the job. I would request you come to the plant before the end of the week in order that you be able to report for work on May 4, 1998."

As requested, the claimant reported for work on May 4th. He was informed by the foreman that the position originally offered was no longer available. Instead, the claimant was assigned to another job. The claimant advised the foreman that he would not be able to perform the job duties as they did not respect his restrictions. In a statement given to a WCB field representative, the claimant declared:

"This job consisted of being right on the kill line and the gutting department. I would be responsible for separating the intestines from the loins of the hogs. This job consists of a great deal of bending and standing during the course of a shift. I was also under the impression that I would be off the kill line, not directly on it."

On a referral from his treating physician, the claimant was examined by an orthopaedic specialist. In his May 11th, 1998, report, the specialist opined: "I think this gentleman suffers from a disk herniation again. I am arranging for him to have a CT scan and I will see him following this to go over the results. Any attempt to have this gentleman to return to work has been unsuccessful. I assume this is the case because he has such a limited range of motion to his lumbar spine."

The CT scan conducted on July 14th, 1998, revealed that there was extensive degenerative change along with rather severe combined stenosis at L3-4 and L4-5 as well as lateral recess encroachment at L5-S1. The orthopaedic specialist continued to believe that there was probably a disc herniation on the left at 4-5 even though this was not mentioned on the CT report. "This gentleman is restricted to about one block of walking. This gentleman's symptoms are consistent with a disc, but could also be caused to some degree by his stenosis. Given that it was a very acute onset, this may more likely be from the disc, given that the stenosis probably pre-existed his February slip."

On or about July 15th, 1998, the WCB conducted a job assessment with respect to the initial position offered to the claimant. This job, as demonstrated, appeared to be within the claimant's restrictions. In a statement, dated August 11th, 1998, the claimant acknowledged that he was not totally disabled and that the initial job had again been offered to him subsequent to May 4th, 1998. However, he declined to accept it.

We are satisfied, based on the evidence, that the claimant could, on a balance of probabilities, have performed the quality assurance job the second time it was offered to him. Accordingly, we find that the claimant is only entitled to the payment of wage loss from May 4th to July 15th, 1998, the day on which the WCB determined that the quality assurance position did in fact respect the claimant's restrictions.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of September, 1999